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    SONJA RENEE SMITH, as Administratrix of the Estate of RUFUS
       A. SMITH, SR., Deceased, as Guardian Ad Litem for the minor
            children of the Deceased, and individually; and MARCUS
            SMITH, a minor; NETRA SMITH, a minor; ANTHONY SMITH, a
             minor; JARREN SMITH, a minor; SHERRI SMITH, a minor;
     ARKILLIUS SMITH, a minor; and TASHIEKA SMITH, a minor, RUFUS
      ANTHONY SMITH, JR., individually, Plaintiffs-Appellants, v.
       THE CITY OF FONTANA, a municipal corporation; ROBERT MEJIA;
            LARRY SMITH, NATHAN A. SIMON; CHARLES A. KOEHLER, BEN
          ABERNATHY; BILL FREEMAN; DONALD F. DAY, WILLIAM FRAGNESS;
                JACK RATELLE; JOHN M. RAGER; and KATHY WILSON,
                          Defendants-Appellees

                                  No. 82-5896
              UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
                    818 F.2d 1411;  1987 U.S. App. LEXIS 800

                           Submitted July 7, 1983 n*
      n* The panel unanimously finds this case appropriate for
      submission and disposition without oral argument pursuant to
             Ninth Circuit Rule 3(f) and Fed. R. App. P. 34(a).
                         Resubmitted May 27, 1986
                             January 6, 1987, Filed

SUBSEQUENT HISTORY: As Amended July 8, 1987. PETITION FOR REHEARING
DENIED AND SUGGESTION FOR REHEARING EN BANC REJECTED May 5, 1987

PRIOR HISTORY:   [*1]

   Appeal from the United States District Court for the Central
District of California, D.C. No. CV 82-3262-WPG, William P. Gray,
District Judge, Presiding.

   Previously Reported at 807 F.2d 796.

COUNSEL: Andrena G. Dancer, Esq., for APPELLANT.

   Bradley C. Withers, Esq., David L. Shain, COTKIN, COLLINS &
KOLTZ, for APPELLEE.

OPINIONBY: NORRIS

OPINION: Before: TANG, n** ALARCON and NORRIS, Circuit Judges.

   n** Judge Tang was selected to sit on this panel following the
death of the Honorable William G. East, Senior United States
District Judge for the District of Oregon, originally sitting by
designation.

   OPINION

   NORRIS, Circuit Judge:
                             PAGE  100                   818 F.2d
1411; 1987 U.S. App. LEXIS 800, *1             LEXSEE   Plaintiff filed this civil rights action under 42 U.S.C. @ 1983
(1982) and other provisions of the Civil Rights Act. The district
court dismissed their complaint for failure to state a claim on the
grounds that relief under section 1983 was barred by Parratt v.
Taylor, 451 U.S. 527 (1981), and Rutledge v. Arizona Bd. of
Regents, 660 F.2d 1345 (9th Cir. 1981), aff'd on other grounds sub
nom. Kush v. Rutledge, 460 U.S. 719 (1983). We reverse on the basis
or recent Supreme Court and Ninth Circuit authority holding that
Parratt and its progeny are inapplicable to civil rights actions
asserting substantive as [*2]   opposed to purely procedural due
process violations. n1

   n1 We temporarily vacated submission of the plaintiffs' appeal
in order to await the decision of the Supreme Court in Daniels v.
Williams, 106 S. Ct. 662 (1986), and the decisions of an en banc
panel of this court in Piatt v. MacDougall, 773 F.2d 1032 (9th Cir.
1985) (en banc), and Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985)
(en banc), and Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985)
(en banc), cert. denied sub nom. Cranke v. Haygood, 106 S. Ct. 3333
(1986).

   I

   FACTS AND PROCEDURAL HISTORY

   Accordingly to the plaintiffs' complaint, City of Fontana police
officers Robert Mejia and Larry Smith responded to a call
concerning a domestic quarrel at the apartment of Rufus A. Smith,
Sr. on May 27, 1982. Encountering Mr. Smith in his parking lot, the
officers asked him to place his hands on his head and detained him
in order to discuss the alleged incident. As Mr. Smith attempted to
comply, Officer Smith without provocation clenched him from behind
in a chokehold and began to drag him backwards. While Mr. Smith was
thus being held, Officer Mejia without provocation began to knee
him in the groin   [*3]   and strike him in the fact. Though Mr.
Smith was unarmed and offered only instinctive resistance against
the blows to his groin and face, Officer Smith drew his duty
revolver and shot Mr. Smith in the back. Mr. Smith dies
approximately one and a half hours later during emergency surgery.
Mr. Smith was a black man.

   Plaintiffs brought suit in federal district court under 42
U.S.C. @ 1983 n2 against Officers Mejia and Smith, the City of
Fontana, and various city officials, n3 claiming that the
defendants' conduct violated the First, Fourth, Fifth, and Eighth
Amendments and both the due process and equal protection clauses of
the Fourteenth Amendment. Plaintiff Sonja Smith, suing in her
capacity as administratrix of the decedent's estate, seeks to
vindicate Mr. Smith's personal civil rights. She and the other
plaintiffs also sue in their capacities as adult or minor children
of Mr. Smith, seeking to vindicate their own personal rights.

   n2 42 U.S.C. @ 1983 provides in pertinent part:
   Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
clauses to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable tot he party injured in
an action at law, suit in equity, or other proper proceeding for
redress.  [*4]

    PAGE  101                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *4             LEXSEE

   n3 These city officials include the Mayor, Mayor Pro-Tem, Chief
of Police, City Manager, City Attorney, City Personnel Director,
and members of the City Council. The complaint alleges that they
all are responsible either for developing and enforcing adequate
standards for the hiring, training, and supervising of police
officers or for rendering legal advice to other officials charged
with such supervision.

   Relying on the then recently-decided Parratt v. Taylor and
Rutledge v. Arizona Bd. of Regents, the district court dismissed
the action in its entirety for failure to state a claim on the
ground that California's post-deprivation remedies for violations
of state tort law were adequate to protect the plaintiffs from
suffering any cognizable constitutional injury. n4

   n4 The plaintiffs also asserted claims for relief under 42
U.S.C. @@ 1981, 1985(2) and 1985(3) and joined several pendent
state claims. The district court treated separately the section
1985 claims, holding that based on the facts alleged in the
complaint the plaintiffs "can[not] state a cause of action with
respect to conspiracy." The plaintiffs apparently do not appeal
this part of the district court's ruling, and hence we do not
review it. The district court dismissed the pendent state claims as
well.  [*5]

   II

   LIMITATIONS ON PARRATT AND ITS PROGENY

   In Parratt v. Taylor, the Supreme Court held that when a state
actor negligently deprived a prisoner of a minor property interest
through a "random and unauthorized" act, the state's provision of
an adequate post-deprivation remedy satisfied the constitutional
requisite of procedural due process. 451 U.S. at 541-44. The
district court apparently understood Parratt to preclude any
section 1983 action based on an official's "random and
unauthorized" deprivation of a constitutional right when a state
provides adequate post-deprivation remedies. However, Parratt and
its progeny merely determine when a state's post-deprivation
remedies are adequate to protect a victim's procedural due process
rights. The Parratt line of cases does not focus on the relevance
of procedural protections to alleged violations of substantive
constitutional rights. As Justice Blackmun noted in his concurrencein Parratt, "there are certain governmental actions that, even if
undertaken with a full panoply of procedural protection, are, in
and of themselves, antithetical to fundamental notions of due
process." 451 U.S. at 545.   [*6]   Such actions violated the
substantive protections of the Constitution and lie outside the
scope of Parratt because the constitutional violation is complete
at the moment the action or deprivation occurs, rather than at the
time the state fails to provide requisite procedural safeguards
surrounding the action. Hence, Parratt is inapplicable to alleged
violations of one of the substantive provisions of the Bill of
Rights, such as the Fourth Amendment. See Robins v. Harum, 773 F.2d
1004, 1009 (9th Cir. 1985) (Parratt's focus on post-deprivation
remedies simply "is not applicable to a claim, such as the instant
excessive use of force claim, brought under the Fourth Amendment");
see also Daniels v. Williams, 106 S. Ct. 662, 678 (1986) (separate
opinion of Stevens, J., concurring in the judgment) ("[W]hen the
Fourth Amendment is violated. . . the provision of an independent
federal remedy under section 1983 is necessary to satisfy the
purpose of the statute.")

   In addition, through the Fourteenth Amendment speaks in terms of
"due process," the Supreme Court has consistently maintained that
the due process
                   PAGE  102                   818 F.2d 1411; 1987
U.S. App. LEXIS 800, *6             LEXSEE

clause "contains a substantive component, sometimes referred  [*7]
 to as 'substantive due process,' which bars certain arbitrary
government actions 'regardless of the fairness of the procedures
used to implement them.'" Daniels, 106 S. Ct. at 678 (Stevens, J.,
concurring) (citation omitted). We have therefore repeatedly
concluded that "[b]ecause the substantive due process is violated
at the moment the harm occurs, the existence of a post-deprivation
state remedy should not have any bearing on whether a cause of
action exists under @ 1983." Rutherford v. City of Berkeley, 780
F.2d 1444, 1447 (9th Cir. 1986). See Shah v. County of los Angeles,
797 F.2d 743, 746 (9th Cir. 1986); McRorie v. Shimoda, 795 F.2d
780, 785-86 (9th Cir. 1986);; Gaut v. Sunn, 792 F.2d 874, 876 (9th
Cir. 1986); Mann v. City of Tucson, 782 F.2d 790, 792-93 (9th Cir.
1986).

   Dismissal of the plaintiffs' section 1983 claims was therefore
improper to the extent that the complaint stated valid claims for
relief for violations of substantive rather than procedural
constitutional rights. n5 We address each of the constitutional
claims asserted by each of the plaintiffs in turn, reviewing the
claims de novo. Guillory v. County of Orange, 731 F.2d 1379, 1381
[*8] (9th Cir. 1984). In conducting this review we presume that the
facts alleged in the complaint are true and construe them in the
ligth most favorable to the appellant. North Star Intern. v.
Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). Dismissal
is improper "'unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Franklin v. Oregon, 662 F.2d 1337, 1343 (9th cir.1981) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

   n5 Liability under section 1983 lies where (1) "the conduct
complained of was committed by a person acting under color of state
law; and (2) . . . this conduct deprived a person of rights,
privileges, or immunities secured by the Constitutional or laws of
the United States." Parratt, 451 U.S. at 535. There is not dispute
here that the alleged conduct by officers Mejia and Smith satisfies
the "under color of state law" requirement, as they "were clothed
with the legitimacy of the government and were purporting to act
thereunder." Haygood, 769 F.2d at 1354. We thus focus solely on
whether the plaintiffs have been deprived of any constitutional
rights.  [*9]

   III

   FOURTH AMENDMENT CLAIMS

   The estate's first legal theory is that the officers' actions
and the City's policies violated Mr. Smith's Fourth Amendment
rights. In Tennessee v. Garner, the Supreme Court held that
"apprehension by the use of deadly force is a seizure subject to
the reasonableness requirement of the Fourth Amendment." n6 471
U.S. 1,7 (1985). Where a victim of a seizure alleges that officers
unreasonably employed excessive force under the circumstances in
order to detain or subdue her, the "reasonableness of force should
be analyzed in light of such factors as the requirements for the
officers' safety, the motivation for the arrest [or detention], and
the extent of the injury inflicted." McKenzie v. Lamb, 738 F.2d
1005, 1011 (9th Cir. 1984). Hence, an allegation that force used
during a personal seizure was excessive as measured by these
factors states a claim for relief under section 1983 predicated
upon the Fourth Amendment. See Garner, 471 U.S. at 9 (use of deadly
force to prevent escape constitutes an unreasonable seizure unless
the officer had probable cause to believe that the suspect poses a
threat of serious harm to the officer or others);   [*10]

    PAGE  103                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *10            LEXSEE

Robins, 773 F.2d at 1008-10 (allegation that police used excessive
force while transporting plaintiffs to police station after arrest
states a section 1983 claim for a Fourth Amendment violation);
MacDonald v. Musick, 425 F.2d 373, 377 (9th Cir.) (defendant
asserting that his arrest was unlawful, that he had a right to
resist, and that he sustained injuries as a result of his
resistance stated claim under section 1983), cert. denied, 400 U.S.
852 (1970); see also Gilmere v. City of Atlanta, 774 F.2d 1495,
1502 (11th Cir. 1985) (alleged beating and killing of suspect
during process of detention stated a section 1983 claim for Fourth
Amendment violation), cert. denied, 106 S. Ct. 1970 (1986). The
defendants candidly concede that under this case law the
complaint's allegations that the decedent was "unarmed and
helpless, and in no way posed a threat to the safety of [theofficers or] any other persons," Complaint at P 30, and that the
defendants' acts were "unwarranted, cruel, inhuman, unjustifiable,
and excessive," id. at P 33, are sufficient to state a claim under
the Fourth Amendment. See Appellees' Supplemental Brief, at 2.

   n6 The Fourth Amendment, made applicable to the states through
the Fourteenth Amendment in Wolf v. Colorado, 338 U.S. 25 (1949),
states in part that the "right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not
be violated . . . ." U.S. Const. amend. IV. [*11]

   The estate can assert this claim on Mr. Smith's behalf. Under
section 1988, a section 1983 claim that accrued before death
survives the decedent when state law authorizes a survival action
as a "suitable remed[y] . . . not inconsistent with the
Constitution and laws of the United States . . . ." 42 U.S.C. @
1988 (1982). See Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978).
Under California's survival statute, "no cause of action [is] lost
by reason of the death of any person but may be maintained by . .
. his . . . administrator." Cal. Prob. Code @ 573 (West Supp.
1986). n7 Therefore, Mr. Smith's Fourth Amendment claim survives
his death and can be maintained by plaintiff Sonja Smith in her
capacity as administrator of his estate. n8

   n7 As an exception to this rule, survival actions may not be
brought in California if the decedent's death is instantaneous with
her legal injury, see Pease v. Beech Aircraft, 38 Cal. App. 3d 450,
459-60, 113 Cal. Rptr. 416, 422-23 (1974), but the complaint here
alleges that Mr. Smith dies approximately one and one-half hours
after he was shot.

   n8 We express no view here as to whether the remedies authorized
by California's survival statute, pecuniary and punitive damages
but not damages for pain and suffering, are too limited to be
"consistent" with the Civil Rights Act's statutory scheme and
whether federal law, therefore, provides an independent source of
recovery for a broader array of damages. See generally Robertson,
436 U.S. at 594 (explicitly holding question open); Guyton v.
Phillips, 532 F. Supp. 1154, 1165-67 (N.D.Cap. 1981) (interpreting
federal law as allowing estate to recover compensation for
decedent's pain and suffering and for his loss of life itself even
though such compensation is unavailable under California's survival
statute); Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1187-90 (7th
Cir. 1985) (holding Illinois' limited recovery under survival and
wrongful death statutes inconsistent with federal law and
authorizing awards of damages beyond those expressly provided);
Bell v. City of Milwaukee, 746 F.2d 1205, 1235-41, 1250-53 (7th
Cir. 1984) (same conclusion with respect to Wisconsin law).  [*12]

  PAGE  104                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *12            LEXSEE

   Mr. Smith's children, suing in their individual capacities, also
assert a claim for relief under the Fourth Amendment. However, theSupreme Court has held that " Fourth Amendment rights are personal
rights which . . . may not be vicariously asserted." Alderman v.
United States, 394 U.S. 165, 174 (1969). The children were not
directly subjected to the excessive use of state force and
therefore cannot maintain personal causes of action under section
1983 in reliance on this Fourth Amendment theory.

   IV

   SUBSTANTIVE DUE PROCESS CLAIMS

A. The Estate's Substantive Due Process Claims

   The estate asserts a section 1983 claim under the due process
clause of the Fourteenth Amendment. The district court erred in
construing this claim as alleging only a procedural due process
violation because egregious government conduct in the form of
excessive and brutal use of physical force constitutes a violation
of substantive due process. See Rutherford, 780 F.2d at 1446
(allegation of unprovoked assault and battery by police officers
states a claim for violation of substantive due process); see also
Shah, 797 F.2d at 746 ("'intentional unjustified, [and] unprovoked'
assault  [*13]   by a prison guard on a prisoner may be a violation
of substantive due process") (citation omitted)' McRorie, 795 F.2d
at 785 (allegation of intentional prison guard brutality states
cause of action for substantive due process violation); Gaut, 792
F.2d at 875 (prison beatings which "shock the conscience" are
actionable as substantive due process violations); Meredith v.
Arizona, 523 F.2d 481, 482-84 (9th Cir. 1975) (assault and battery
by prison guard violated the right to liberty). As with the Fourth
Amendment claim, resolving a substantive due process claim requires
courts to balance several factros focusing on the reasonableness of
the officer's actions given the circumstances. In Rutherford, we
held that

   "in determining whether the constitutional line has been
crosses, a court must look to such factors as the need for the
application of force, the relationship between the need and the
amount of force that was used, the extent of the injury inflicted,
and whether force was applied in a good faith effort to maintain
and restor discipline or maliciously and sadistically for the very
purpose of causing harm."

780 F.2d at 1446 (quoting Johnson v. Glick, 481 F.2d  [*14]   1028,
1033 (2d Cir. 1973)). Given its focus on these factors, the
complaint clearly alleges that Mr. Smith's substantive due process
rights were violated and hence the estate pleads a valid due
process claim under section 1983.
B. The Children's Personal Substantive Due Process Claim

   The children also plead that the defendants violated their
personal "rights not to be deprived of the life of their father and
not to be deprived of his love, comfort, and support. . . . "
Complaint, at P 40. We conclude that based on this allegation thechildren state a claim for violation of their substantive due
process rights.

   The Supreme Court has yet to address whether and when the
government's act of taking the life of one family member deprives
other family members of a

    PAGE  105                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *14            LEXSEE

cognizable liberty interest in continued association with the
decedent. Our court, however, has held that parents can challenge
under section 1983 a state's severance of a parent-child
relationship as interfering with their substantive liberty
interests in the companionship and society of their children. In
Morrison v. Jones, 607 F.2d 1269 (9th Cir. 1979), cert. denied, 445
U.S. 962 (1980), we held that when county  [*15]   officials
removed a mentally ill boy from his mother's custody on the ground
that she could not adequately care for him, the mother could bring
a section 1983 action for damages to vindicate her "substantive
familial rights that have long been considered the 'basic civil
rights of man.'" Id. at 1276 (quoting Skinner v. Oklahoma, 316 U.S.
535, 541 (1942)). More recently, in Kelson v. City of Springfield,
767 F.2d 651 (9th Cir. 1985), we held that parents who alleged that
school officials negligently allowed their son to commit suicide
could maintain a section 1983 action to vindicate "their
fundamental parental rights guaranteed by the Ninth Amendment . .
. and . . . their right to association with their son guaranteed by
the First Amendment." Id. at 653. After examining a long line of
Supreme Court cases stressing "the importance of familial bonds"
and identifying the many times the Supreme Court has applied both
substantive and procedural due process to protect the interests of
parents "in maintaining a relationship with their children," id. at
654, we conclude that "a parent has a constitutionally protected
liberty interest in the companionship and society of  [*16]   his
or her child." Id. at 655.

   We now hold that this constitutional interest in familial
companionship and society logically extends to protect children
from unwarranted state interference with their relationships with
their parents. The companionship and nurturing interests of parent
and child in maintaining a tight familial bond are reciprocal, and
we see no reason to accord less constitutional value to the child-parent relationship than we accord to the parent-child
relationship. n9 Cf. Roberts v. United States Jaycees, 468 U.S.
609, 619-20 (1984) ("Family relationships, by their nature, involve
deep attachments and commitments to the necessarily few other
individuals with whom one shares not only a special community of
thoughts, experiences, and beliefs but also distinctively personal
aspects of one's life.").



   n9 Indeed, if any distinction can be drawn, one might even argue
that a child has a greater interest in the continued life of a
biological parent that vice versa because often the father has or
can have other biological children, whereas a child can never
replace a biological parent.

   We recognize that the Supreme Court cases on which Morrison and
Kelson [*17]   relied to define the substantive liberty interest in
a parent-child relationship involved suits by parents of minor
children. The state's interference with the parent-child
relationship therefore threatened not only the parents' interest in
the companionship of their children, but also the parents'
constitutionally-protected interest in raising their children. See,
e.g., Santosky v. Kramer, 455 U.S. 745 (1982) (natural parents
entitled to procedural due process at a state-initiated parental
rights termination proceeding); Lassiter v. Dep't of Social
Services, 452 U.S. 18 (1981) (parents entitled to procedural due
process prior to state termination of parental status on grounds of
unfitness); see also Pierce v. Society of Sisters, 268 U.S. 510,
534-35 (1925) (requirement that children attend public school
unreasonably interferes with parents' liberty "to direct the
upbringing and education of children under their control").

    PAGE  106                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *17            LEXSEE

   When, as in this case, a child claims constitutional protection
for her relationship with a parent, there is not custodial interest
implicated, but only a companionship interest. This distinction
between the parent-child and the child-parent relationships  [*18]
 does not, however, justify constitutional protection for one but
not the other. We hold that a child's liberty interest in the
companionship and support of a parent is sufficiently weighty by
itself that interference with this interest may trigger a violation
of substantive due process. Our view finds support in Strandberg v.
City of Helena, 791 F.2d 744 (9th Cir. 1986), where parents brought
a section 1983 claim against the state for negligently allowing
their son to commit suicide in jail. The parents' interest in
directing the upbringing of their son was not implicated because
the son was twenty-two years old and no longer a minor; the parents
therefore "had not been deprived of any constitutional right to
parent." Id. at 748 n.1 (emphasis added). However, the parents were
able to "claim a violation of their fourteenth amendment due
process rights in the companionship and society of the decedent."
Id. at 748. Thus, the familial relationship, and not the more
narrow custodial interest of the parents, gave rise to the
substantive due process action. See also Bell, 746 F.2d at 1245
(parent can assert personal substantive due process claim for death
of adult child  [*19]   because the "Supreme Court's decisions
protect more than the custody dimension of the parent-child
relationship"); cf. Moore v. City of East Cleveland, 431 U.S. 494
(1977) (extending Supreme Court principles protecting the parental
role in raising children to protect a broader set of relationships
within the family structure and invalidating under substantive dueprocess a zoning ordinance preventing grandmother and grandson from
living together in certain circumstances). n10

   n10 We intimate no view as to whether the familial relationship
between siblings is sufficiently constitutionally protected as to
allow one sibling to assert a section 1983 action based on the
death of the other. Compare Turjillo v. County Commissioners, 768
F.2d 1186 (10th Cir. 1985) (siblings can bring section 1983 claims
for substantive due process violations resulting from wrongful
death), with Bell, 746 F.2d 1205 (siblings cannot do so).

   Our conclusion also finds compelling support in the legislative
history of section 1983's precursor, the Ku Klux Klan Act of 1871.
Representative Butler described the Act "as a remedy for wrongs,
arsons, and murders done. This is what we offer to a man whose
[*20]   house has been burned, as a remedy; to the woman whose
husband has been murdered, as a remedy; to the children whose
father has been killed, as a remedy." Cong. Globe, 42d Cong., 1st
Sess. 807 (1871) (emphasis added). Indeed, the "legislative history
makes a clearer case for recovery to the child due to loss of
support or loss of society and companionship of a parent. . . [than
for] the parent's rights [for recovery] vis-a-vis the loss of a
child." Bell, 746 F.2d at 1244 (emphasis added). Both case law and
legislative history thus lead us to the conclusion that Mr. Smith's
adult and minor children all state valid section 1983 claims for
violations of their personal substantive due process rights under
the Fourteenth Amendment. n11

   n11 We recognize that at least one circuit has held that
plaintiffs must allege an intentional interference with a parent-child relationship to state a claim under this substantive due
process theory. See Trujillo, 768 F.2d at 1190. However, our
circuit had not adopted such a state of mind requirement. See
Kelson, 767 F.2d at 652 (substantive due process claim stated where
state's interference with parent-child relationship resulted from
negligence).  [*21]

    PAGE  107                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *21            LEXSEE

   V

   EQUAL PROTECTION CLAIMS

   The complaint alleges that the City had an unwritten policy
authorizing excessive force against blacks and that pursuant to
that policy officers Smith and Mejia used excessive force to subdue
decedent Mr. Smith because he was black. If these facts are proved,
Mr. Smith was "personally denied equal treatment solely because of
[his] membership in a disfavored group." Heckler v. Mathews, 465
U.S. 728, 740 (1984). Accordingly, the estate may maintain a
survival action against all defendants for damages suffered by Mr.
Smith as a result of the shooting incident. n12
   n12 We reach this conclusion subject to one important caveat:
the complaint may be deficient with respect to its allegation that
the City adopted an "official policy" giving rise to municipal
liability under Monell v. Dep't of Social Services, 436 U.S. 658,
694 (1978). The unwritten "policy" averred in the complaint is the
"failure of the defendants to provide training, instruction and
supervision regarding the lawful use of an officer's service
revolver and the use of excessive and deadly force" and the failure
to enforce departmental regulations creating an "atmosphere of
lawlessness." Complaint, at PP 49-50. Because the district court
did not reach the issue and the parties did not brief it on appeal,
we do not consider whether the facts alleged in the complaint, if
proved, would establish municipal liability under Monell and its
progeny. See generally City of Oklahoma City v. Tuttle, 471 U.S.
808 (1985) (raising but not resolving the question whether a
"policy" of inadequate police training meets initial resolution by
the district court upon remand. See Kelson, 767 F.2d at 656.

   We also note that the individual City supervisory officials are
liable only if the plaintiffs demonstrate an "affirmative link
between the occurrence of the . . . police misconduct and the
adoption of any policy or plan by . . .[the officials] -- express
or otherwise -- showing their authorization or approval of such
misconduct." Rizzo v. Goode, 423 U.S. 362, 371 (1976). Whether such
a link exists here of course depends on whether anyone adopted a
plan or policy cognizable under Monell, and hence this question is
also appropriately left for the district court upon remand.  [*22]

   The children also assert an equal protection challenge, focusing
not on the shooting incident itself, n13 but rather on the
possibility that similar race-based incidents will occur in the
future. Specifically, the children allege that the propensity of
officers Mejia and Smith to employ excessive force against black
residents in the future and the City's and supervisory officials'
sanction and encouragement of such a practice by all City police
officers threaten the physical security of all black people within
the jurisdiction of the Fontana Police Department. Fearing future
injury at the hands of the Fontana police because of their race,
the children seek injunctive relief against officers Mejia and
Smith barring them from active street duty and seek a declaratory
judgment that the City's discriminatory policy is unconstitutional.
We agree with the children that the alleged individual propensities
and institutional practice, if proved, would deny them the same
protection against abuse by law enforecement officers that white
residents enjoy. Therefore, the children assert a valid cause of
action under the equal protection clause to challenge all
defendants' ongoing practice of discriminating  [*23]   against
black residents. Dismissal of this claim under Fed. R. Civ. P.
12(b) (6) was

    PAGE  108                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *23            LEXSEE

therefore improper. n14   n13 We do not address the difficult question whether the
children could state a claim for damages under the equal protection
clause based on the police shooting of their father. We do not
interpret their complaint as pleading this claim, and they have not
raised it in their briefs filed with this court.

   n14 We do not address the question whether, if the facts alleged
in the complaint are proved, the children would necessarily be
entitled to either injunctive or declaratory relief. See Davis v.
Passman, 442 U.S. 228, 239 (1979) ("[T]he question whether a
litigant has a 'cause of action' is analytically distinct and prior
to the question of what relief, if any, a litigant may be entitled
to receive.").

   VI

   REMAINING CONSTITUTIONAL CLAIMS

   The plaintiffs also alleged violations of their First, Fifth,
and Eighth Amendment rights. Because these rights are all
substantive in nature, Parratt's focus on post-deprivation remedies
is inapposite. However, these claims were all properly dismissed
because the plaintiffs fail to state a claim for relief with
respect  [*24]   to these rights. Except insofar as the First
Amendment right to intimate association is relevant to the
children's ability to assert a substantive due process claim, ante
at    , the complaint alleges no action of the officers or the city
defendants that could conceivably implicate First Amendment
concerns. The plaintiffs do not allege that the officers' action or
the City's policy was designed to or had the effect of interfering
with the decedent's or the children's ability to exercise their
rights of free speech or association. Because the Fifth Amendment
claim must rest either on that Amendment's due process clause or
its implicit equal protection clause, any Fifth Amendment claim is
merely duplicative of the Fourteenth Amendment claims. The Eighth
Amendment protects only those who have been convicted of a crime,
see Bell v. Wofish, 441 U.S. 520, 535 n.16 (1979), and therefore
none of the plaintiffs can claim its protection here. n15

   n15 The district court did not treat separately the plaintiffs'
claim that the defendants violated 42 U.S.C. @ 1981 by denying them
"the full and equal benefit of all laws and proceedings for the
security of persons . . . as is enjoyed by white citizens . . . ."
Because Parratt places limitations only on procedural due process
actions under section 1983, Parratt does not justify dismissal of
the section 1981 claim. Because the issue was not briefed on
appeal, we do not address the question whether the plaintiffs state
a cause of action under section 1981.  [*25]

   VII

   CONCLUSION

   We hold that Mr. Smith's estate has properly stated a section1983 claim for damages against all defendants for violations of his
Fourth Amendment rights, against all defendants for violations of
his Fourteenth Amendment substantive due process rights, and
against all defendants for violations of his Fourteenth Amendment
equal protection rights. We also hold that Mr. Smith's children
have stated a section 1983 claim for damages against all defendants
for violations

    PAGE  109                   818 F.2d 1411; 1987 U.S. App. LEXIS
800, *25            LEXSEE

of their substantive due process rights and a cause of action for
injunctive relief but not damages against all defendants for
violations of their Fourteenth Amendment equal protection rights.
The district court's dismissal of the plaintiffs' action is
therefore reversed.

   REVERSED AND REMANDED.